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Iowa chief justice says he has no authority to take action on Reynold's judge appointment

Questions linger on whether governor appointed judge by deadline

Sixth Judicial District Associate Judge Nicholas Scott (right) administers the oath to Jason Besler during Besler’s July 27 investiture as the newest district judge at the Linn County Courthouse in Cedar Rapids. Besler fills the vacancy left by Judge Marsha Bergan, who retired. Besler was an assistant Linn County attorney for 18 years. (Jim Slosiarek/The Gazette)
Sixth Judicial District Associate Judge Nicholas Scott (right) administers the oath to Jason Besler during Besler’s July 27 investiture as the newest district judge at the Linn County Courthouse in Cedar Rapids. Besler fills the vacancy left by Judge Marsha Bergan, who retired. Besler was an assistant Linn County attorney for 18 years. (Jim Slosiarek/The Gazette)

Iowa Supreme Court Chief Justice Mark Cady will not “confirm or ratify” the June appointment of a 6th Judicial District judge following questions over whether Gov. Kim Reynolds picked the judge within a deadline as required.

A memo Cady’s attorney sent to Iowa judges Monday — which was released to the media Wednesday — said the governor’s office has said Reynolds made the appointment of Judge Jason Besler within a 30-day time frame and so he has no authority under the state constitution to confirm the judge.

“This determination by the governor deserves respect unless resolved differently through the legal process established to resolve disputes,” the memo to the judges said.

Moreover, the state constitution “does not give the chief justice any additional authority to ‘confirm’ or ‘ratify’ a judicial appointment made by a governor. The chief justice only has the power to ‘make the appointment’ if the governor fails to do so.”

Iowa Judicial Branch spokesman Steve Davis sent the memo to reporters, who had been asking the court to comment, but said there would be no more comment.

The timeline question arose when Besler told The Gazette he wasn’t contacted by Reynolds about his appointment until June 25, four days past the deadline.

The 6th Judicial District Nominating Commission selected him and another Cedar Rapids lawyer, Ellen Ramsey-Kacena, on May 21, said Darin Luneckas, commission member and Linn County Bar Association president. The names were forwarded to the governor, who had 30 days to appoint, according to Iowa law.

Gary Dickey Petition by Gazetteonline on Scribd

Reynolds, in a June 25 news release, said she made the appointment June 21. But Besler, 6th Judicial District Chief Judge Patrick Grady and the Supreme Court were not told until June 25.

The governor planned to contact Besler when she appointed him June 21, but “attention to flooding and other matters” delayed the call, said Reynolds’ spokeswoman Brenna Smith in a June 25 email.

Bleeding Heartland, a political website, acquired June 25 emails from Cady’s attorney, Molly Kottmeyer, to Reynolds’ chief of staff, Ryan Koopsman. Kottmeyer said she understood the appointment wasn’t made in writing but, “We trust the appointment was made within 30 days as required by the constitution, and the date the appointee was notified would have no legal significance.”

In a July 6 email, Kottmeyer wrote to Koopsman that although Reynolds didn’t notify Belser or judicial officials within 30 days, “the chief justice respectfully defers to and accepts the decision by Gov. Reynolds that this appointment was made on June 21.”

Democratic Party chair Troy Price and other lawyers held a call with reporters Sept. 25, asserting Besler lacked the authority to serve and that his rulings could be subject to legal challenges.

Gary Dickey, a Des Moines lawyer who served as chief of staff for former Democratic Gov. Tom Vilsack, on Tuesday sent a letter to Johnson County Attorney Janet Lyness asking her to file a civil action.

Dickey noted in the letter that Besler’s judicial commission certificate is dated June 21, but both Reynolds and Iowa Secretary of State Paul Pate acknowledged it was signed June 25.

Lyness didn’t not return a phone message and email Wednesday.

Kottmeyer’s memo said the chief justice “finds himself in a difficult position, as is Jason Besler and litigants in his courtroom.”

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But it said Cady will not take any action and instead “monitor the situation in order to protect the judicial process and all its judges.”

l Comments: (319) 398-8318; trish.mehaffey@thegazette.com

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